The interaction of law and psychiatry: a voyage over the ages.

• Author: Rosenblatt, Albert M.

The most obvious quality shared by law and psychiatry is that both disciplines try to help people get along--psychiatry from the inside, law from the outside. Both attempt to keep the world sane, or at least well enough adjusted that people can get on with their own lives and with one another.

Law and psychiatry share another quality. Both strive to achieve, perfection, but cannot. That can be a little disappointing, because certain enterprises can produce perfection, or something close to it. A perfect emerald, a moss rose, Joe DiMaggio's swing, Bach's Goldberg variations, Mozart's Jupiter Symphony #39--all may be perfect examples of their genre. A plastic surgeon might even be able to produce what the patient regards as a perfect nose. But we will never have a perfect legal system-one that produces perfect results--or a discipline capable of producing perfect mental health (whatever that means). There is no pessimism in this. By and large we do passably well and are getting better.

Law and psychiatry both deal with that most elusive commodity: human behavior. A society could do quite nicely even if it placed no importance on the quality of emeralds or noses. But a society oblivious to the motivations and mental processes of its members could not last very long, just as it could not function without a rule of law. The behavioral and mental aspects are psychiatry's specialty; in jurisprudence, it is the rule of law. Consider the similarities: behavior and adjustment are individual traits, as in a patient, but behavior and adjustment also involve collective actions that shape or even underlie the rule of law. This goes back a very long time.

Before we began to write things down and long before we started to use words like psychiatry and jurisprudence, our respective forebears were on the job. In a primitive society, if someone was not acting quite right--mentally--there were remedies. And if someone was acting unlawfully--in terms of the law as defined by that society--we had remedies for that too. Conceivably, the same aberrational behavior could be considered both unlawful and deranged and even be dealt with by a single ruler--say, a tribal chief, or whoever was in charge. Psychiatric and legal disorders have always existed, but over the centuries it has been our perceptions and our remedies that have changed--for the better, I would argue.

In Western culture, psychiatry and law have traveled similar paths from their origins to where we stand today, at the beginning of the twenty--first century. For as long as we have had cognition and intelligence, we have been concerned about our mental and physical well-being (call it psychiatry, medicine--or relief by magic and superstition). And for just as long we have tried to regulate our social dealings with one another (call it democracy, jurisprudence, slavery, sovereignty, tyranny, or magic and superstition). Both the healing arts and the law began in relative darkness, using superstition and magic to cope with the awesome and incomprehensible elements around us.

In Western culture, medicine and law painfully overcame the institutions that stood in the way of progress. Over the centuries, the best paths of the law were obstructed by political tyranny, religious, racial, and gender persecution and subjugation. In the healing arts, the same oppositional forces choked off the truest path to medical enlightenment: a road lit by the spirit of free scientific inquiry.

Looking back tens of thousands of years, we have every reason to believe that humans have always been afflicted by illnesses from which they sought relief. One writer reports that in 350-million-year-old Devonian fossils scientists discovered "ravages apparently caused by parasites." (1) In Wyoming, the remains of a dinosaur's tail contained bone tumors that evidently immobilized the animal. (2) We have had headaches ever since we have been on this planet, and with those headaches we have also had backaches, earaches, stomachaches, runny noses, and probably athlete's foot.

Speaking of headaches, we all know that they can be caused by tumors and environmental stress. It would be nice to think that emotional or mental discomfort is caused only by the merciless rigors of modern life, and we have only to revert to our bucolic origins, to romp the countryside in blissful innocence and mental health. But no respectable body of modern authority upholds the notion of Jean-Jacque Rousseau's "good savage" in whose society "neither suicide nor mental disease ... exist[ed]." (3)

It is more likely, as Gregory Zilboorg and George W. Henry have suggested, that our primitive ancestors were "very frightened human being[s]" whose "world was populated with spirits which were but images of [their] own anxiety." (4) One commentator points out that madness is "as old as mankind," and that "[a]rchaeologists have unearthed skulls datable back to at least 5000 BC which have been trephined or trepanned--small round holes have been bored in them with flint tools. The subject was probably thought to be possessed by devils" and so holes were bored to release. (5)

When we go back to the ancients, we find that the Egyptians formalized the practice of medicine by the time of the early dynasties (6) which was around 3,000 B.C. (or 5,000 years ago). (7) In ancient Egypt, medicine and magic "united under the same heading" with one word used to refer to physician and magician. (8) Papyrus documents reveal incantations to cure specks of the cornea and different incantations for tapeworm. (9) Within the framework of magic and religion, this makes perfect sense. The Egyptians, who saw disease "as hurled from the heavens," relied on "priest-doctors" as well as "auguries, sacrifice, and divination" for healing. (10) Egyptians refused to cremate, so they buried the dead in sand, which made a good preservative. (11) The Egyptians believed that the brain served no useful purpose but that the heart was "the seat of the human soul." (12) They understood snakebites as invasive but considered outside spiritual sources as causing diseases as well, (13) and by the time of the New Kingdom, Egyptian medical practice "was essentially one of spiritual intervention." (14) There are, however, records of medical prescriptions for all manners of ailments. (15) Walter Libby also reported that the thousands of bodies exhumed in Nubia revealed little evidence of poor teeth, but arthritis was "the bone disease par excellence of the ancient Egyptians." (16)

Of course, we can infer interaction between healers and law administrators in Egypt, but as a matter of historical record, one of the first such interactions in ancient culture occurred in what some call the birthplace of civilization--the region that includes Ancient Mesopotamia, Sumeria, and Babylonia, which is today Iraq. (17) The Code of Hammurabi is the earliest known example of written law, and it included certain medical provisions. (18) It is "the starting-point of medical jurisprudence, throw[ing] light on the rights and duties of the surgeon of 2080 B.C." (19) The Code provides that:

If a physician operate[s] on a man for a severe wound ... with a bronze lancet, and save the man's life; or if he open an abscess (in the eye) of a man, with a bronze lancet, and save[s] that man's eye, he shall receive ten shekels of silver (as his fee). (20) If, however, the physician performed a bad operation causing death or blindness, the physician's hands were cut off. (21) This was the first, and perhaps the most extreme, medical malpractice provision. (22) To put things in perspective, the Code of Hammurabi was written in about 1750 B.C., some 500 years before the Ten Commandments and over 1,300 years before Plato. (23)

As advanced as they were in cataloguing diseases and prescribing substances, the Ancient Babylonians believed that sickness and events were influenced by a multitude of gods and goddesses. (24) Just as medical cures were associated with incantations and exorcising demonic spirits, so too were the laws written in obeisance to a pantheon of gods who, the ancients believed, controlled their destinies. (25)

In the law, it was not until the time of Moses--some 500 years after Hammurabi (26)--that these relationships were altered. With Moses, the consequences of actions were based not on magic but on contract. And the purpose behind adherence to law was not to appease one of...